China Grapples With Its First-Ever Lesbian Custody Case

A Chinese lesbian couple has taken their custody battle to court, taking the country into brand new legal territory.

A lesbian couple in China is battling each other over custody in court — a first for the country, where same-sex marriages are not recognized.

According to NBC OUT, Zhang Peiyi broke up with her partner last year. Afterward, her partner disappeared with their two toddlers in tow. In an effort to get them back, Zhang filed a case in court, asking for custody of the child she gave birth to and visitation rights to the other child.

The court has accepted the case, though hearings have not yet begun. It is the first case of its kind in China.

Marriage is defined as a union between a man and a woman in China. Still, same-sex partnerships exist, and there are reportedly over 100 assistive reproductive companies that help gay couples have children together. When these partnerships end, they have little recourse in the law.

Zhang’s case presents a unique difficulty, because while she did physically carry and give birth to one of her children, her partner provided the eggs for both. They had their children in the United States, where they also got married.

The court’s decision in this case will set a major precedent. The court will have to decide which circumstances allow an LGBTQ+ parent to claim custodial rights over a child. Does giving birth count? Having a genetic relationship? Raising the child? Which one of these claims can trump the others?

The case has drawn a great deal of media attention. It also shines a light on the need for marriage equality, which would render all of these debates over motherhood moot, Zhang says.

“The focal point is how can you determine who is a child’s mother,” Zhang told NBC OUT. “But if you consider that there are two mothers, then it will return to the issue of same-sex marriage.”

To that end, Zhang isn’t giving up on fighting for the legalization of same-sex marriage. “You need to, bit by bit, make it happen,” she said.

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